THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODOKI,CJ, TSEKOOKO, KAROKORA, MULENGA AND
KANYEIHAMBA, JJ.S.C
CIVIL APPEAL NO. 1 OF 2002
BETWEEN
NSEREKO JOSEPH }
KISUKYE SARAH
} ::::::::::::::::::::: APPELLANTS
HAJI MUNJI & OTHERS
}
AND
BANK OF UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::
RESPONDENT
(Appeal from the judgment of the Court of Appeal
(Okello, Mpagi-Bahigeine, Twinomujuni JJA) dated 22nd October 2002 in
Civil Appeal No 1 of 2002)
RULING OF THE COURT
The Appellants appealed to this Court against the decision of the Court of
Appeal which reversed the decision of the High Court awarding
the Appellants
nominal general damages and costs of the suit. The appeal to this Court was
dismissed with costs, on 21 March 2003.
However, the Court observed that the appeal arose from a representation suit.
But it was not apparent from the record whether all
the Appellants and all those
represented in the suit were aged below 50 years at the time they accepted the
terms of their respective
compensatory packages. It was further observed that
the dismissal of the appeal should not affect the pension rights of any
Appellant
who was aged 50 years or more at the time of accepting to terminate
their employment under the voluntary scheme. Those pensionable
employees who had
not reached early retirement age but opted to voluntarily terminate their
services were not entitled to pension.
On 1st July 2003, the Registrar of this Court signed an order drawn by M/s
Mugerwa & Masembe Advocates, Counsel for the respondent
and approved by M/s
Matovu & Kimanje Nsibambi Advocates, Counsel for the Appellants. The order
stated inter alia, as follows.
IT IS ORDERED THAT
1. The appeal BE AND IS HEREBY
DISMISSED.
2. The Appellants who were 50 years or older as at the 30th
November 1994 are entitled to their pension notwithstanding the dismissal of the
appeal.
IT IS ORDERED that the costs of this appeal and of the Court below be
borne by the Appellants."
On 24 September 2003, the Registrar of this Court wrote the following letter
to Hon. Justice Oder JSC seeking directions on how to
proceed with
execution:
"On the 1st day of August 2003, M/S Matovu & Kimanje
Nsibambi Advocates applied for execution by way of warrant of attachment and
sale of
immovable property (A copy of warrant is herewith enclosed.)
M/s Matovu & Kimanje Advocates maintain that the Appellants who were
50 years and above are entitled to Shs.3,718,000,000/=(Three
Billion Seven
Hundred and Eighteen Million Shillings only). On the other hand M/s Mugerwa
& Masembe Advocates for Bank of Uganda
state that of the 283 Appellants,
only 33 were aged over 50 years as at 30th November 1994. And that
the 33 Appellants are entitled to Shs.115,631,289/=(One Hundred and Fifteen
Million, Six Hundred Thirty One
Thousand Two Hundred and Eighty Nine Shillings
only).
My Lord, I am now in a dilemma as to the exact amount the Appellants who
were above 50 years are entitled to as per the decree attached.
I therefore do
hereby seek your Lordship's guidance before I proceed with the execution
process."
We decided to summon both Counsel
to appear before us to clarify the order of the Court. We heard both Counsel on
18 November 2003.
In his submissions Mr Kimanje Nsibambi, learned Counsel for the Appellants
stated that the order of the Court was not clear as it
did not mention the
number of people who were 50 years and above who were entitled to pension. He
pointed out that Appellants claim
the number to be 184 as of 30 November 1994.
But the respondent claims that the total number should be 73, and those
represented
by Counsel to be 33. He contended that the Appellants filed a
representative action for 184 Appellants whose names were listed in
the
application, although only 33 of those were listed in the plaint. He informed
Court that he represented all those employees who
were affected. He pointed out
that many of the employees had qualified to benefit under the new scheme of
1995.
Secondly Mr Kimanje Nsibambi argued that the order of the Court did not
include the amount of money to be paid to the Appellants.
Thirdly, he contended
that since the Appellants were successful in their appeal, they should not have
been ordered to pay costs.
In reply Mr Kanyerezi, learned Counsel for the respondent, submitted that the
issue of those Appellants who were 50 years of age or
above getting pension was
conceded in the Court of Appeal and therefore the Appellants should not get
costs because the respondent
had conceded to pension for 33 Appellants. He
conceded that Appellants did not have to pay the costs, but he argued that the
respondent
should not be penalised in costs either.
Mr Kanyerezi informed Court that the respondent had computed the pension due
to each of the 33 Appellants. He sought direction on
how the money should be
paid to the Appellants. He proposed that his learned friend compiles a list of
184 claimants and promised
to give him their bio data. He stated that the
respondent Bank would pay directly those claimants not listed in the plaint. He
raised
the question of which pension scheme was applicable.
Taking into consideration the decision and orders of this Court, as well as
the submissions of both Counsel, we wish to clarify our
judgment and orders as
follows:
| 1. | Since the suit was a
representative action on behalf of the Bank of Uganda Veterans Association, all
Appellants who qualified for
pension as at 30th November 1994 should
be paid their pension. |
| 2. | Bank of Uganda staff
records shall form the basis for identification of Appellants who qualified for
pension. |
| 3. | The Pension scheme operating at the
time of retirement, which was 30th November 1994, shall govern the
calculation of the amount of pension payable to each
Appellant. |
| 4. | Although the appeal to this Court
was dismissed, the Appellants whose rights to pension were not affected by the
dismissal, shall
not be required to pay costs in this Court and Courts
below. |
| 5. | The Bank of Uganda shall pay pension
directly to all Appellants who are
entitled. |
Dated at Mengo this 16th day of January 2004
B J Odoki
CHIEF JUSTICE
J W N Tsekooko
JUSTICE OF THE SUPREME
COURT
A N Karokora
JUSTICE OF THE SUPREME COURT
J N Mulenga
JUSTICE OF THE SUPREME
COURT
G.W. Kanyeihamba
JUSTICE OF THE SUPREME COURT
